ment the governor shall appoint one additional judge of the Supreme Court, who shall hold office until the first Monday in January, 1885, and at the general election in 1884 his successor shall be elected. The judges in office on the first Monday in January, 1883, may determine who of them shall sit on the civil and who on the criminal side of the court: Provided, they do so by 2 P. M. of that day; failing in this the governor shall immediately assign them. After the first Monday in January, 1883, judges shall be elected to fill vacancies on the civil or criminal side, as the case may be, and with special reference to their fitness for that side in which the vacancy has or is to occur. § 7. All provisions of the Constitution of this State, and all laws and parts of laws of this State, not consistent with this amendment, shall, upon its adoption, be forever rescinded and of no effect."

In the present judicial system there are many evils that could and should be remedied, but the one most prominent, and for the eradication of which the foregoing resolution was passed, is that of inadequacy to dispose of the present volume of litigation. I object to the concurrent resolution, and shall vote against it because it would not, in my judgment, enable the court to dispose of its docket, nor accomplish the end in view, and the evils it would create are greater than the one it proposes to eradicate, in this, that (1) it increases the number of judges; (2) makes a monarch of the chief justice; (3) substitutes for one court of last resort what purports to be three courts of last resort; (4) does not equally divide the labor of appellate litigation between the three bodies elected and paid to perform it; (5) consolidates the Supreme Court and St. Louis Court of Appeals into an unnamed and unlocated tribunal; (6) undertakes to enforce the opinion of a majority of three men for what should be the opinion of a majority of the court; (7) substitutes for one trial two, and possibly four, and (8) undertakes, at the expense of the tax-payers, to try an experiment not warranted by prece. dents.

1. Six Supreme Judges. By adding the sixth judge to our supreme bench, it will make $4,500 a year additional cost to the State. It will create a tribunal of even numbers instead of odd, as it should be, considering that it acts by a majority of its members. Out of thirty-eight States only five have an even number of judges in their courts of last resort; three have four each, one eight, and one sixteen.

2. The power of the chief justice is too great, and his duties are too arduous. He has authority to say that the criminal division of the court or the St. Louis Court of Appeals, has, by unanimous consent, after full hearing rendered a decision contrary to some previous decision of the court. If a member of the civil division (because he knows all about civil, and nothing about criminal law), he is presumably unqualified to pass upon the

labors of the criminal division (who know all about criminal law and nothing about civil), and yet has the power to bring every doubtful and closely balanced cause into the court in banc to be finally passed upon. By whom? Not by the criminal judges-they have already made up their minds. Not by the chief justice-he has already made up his mind. But by the remaining two civil judges who, presumably, are not qualified to adjudicate criminal matters, or by an extra, in case there should be an equally divided court. If he is a member of the criminal division, he may take every question in which he differs with his associates into the court in banc, and, as before, have it determined by men who the people elected to try and determine their civil business. As a member of either division he may say that the St. Louis Court of Appeals has, by a majority of two, or unanimously, as the case may be, decided contrary to some decision of the Supreme Court, or of the three judges (or two) composing the civil division, and require the St. Louis Court of Appeals, litigants and lawyers to go to Jefferson City, or the Supreme Court to go to St. Louis (the resolution don't say which or what else), only to ascertain what?-that the Chief Justice was in error; that there was a difference between the three members of the St. Louis Cour of Appeals, and the three members of the civi division of the Supreme Court, which must be settled by whom? the three criminal judges. The Chief Justice is a member of one of the divisions of the Supreme Court, and as such has the same dutics of every other member of the court; and in addition, must hear every application which the outraged, energetic and enterprising lawyer appearing before the criminal division or the St. Louis Court of Appeals may see fit to make. Quere: Is not the power of granting rehearings and writs of certiorari so great and so arbitrary that, sooner or later, and especially in the hands of some judges, it will become a matter of course?

The Chief Justice is not chosen by the people because of his fitness, nor even selected by his associates because of his sound discretion and good judgment, but is simply the oldest in commission, and may be a different man every two years, or oftener, in case of death, resignation or impeach

ment.

3. The attempt to substitute,for one court of last resort, three courts of last resort must, I think, prove a failure. It is the history of every final court in the land, that it finds it necessary to overrule itself. Our own Supreme Court has done so in the same case on a second appeal. This occurred while the court was sitting as one body, with an election for only one judge out of five, in two years. How will consistency hold its own, when there are three courts of final resort, and a majority of the civil division of the Supreme Court may be new judges every four years? There seems to be a half-developed idea to have the civil division of the Supreme Court the controlling

authority. If so, let us see how it works. The civil division decides a point of evidence, a matter of practice or any other point; the criminal division decides contrary thereto, or the Chief Justice thinks so, and the court meets in banc. If each branch has decided unanimously, there is a tie, and a special judge must be chosen. If the civil side decided by a majority of two, it will be overruled by its dissenting member and the three criminal judges. Again, suppose the St. Louis Court of Appeals decides contrary to precedent as established by say two of the three judges of the civil division, or the Chief Justice thinks so, and the two bodies meet in the nameless tribunal on the unlocated territory. A majority of the nine judges constitute a quorum, Suppose the three St. Louis Court of Appeal judges and only two others present. Suppose the three judges of the St. Louis Court of Appeals and the three civil judges equally divided by any of the different possible combinations, and you will have contingent remainders, equitable subrogation, etc., submitted for determination by criminal judgés. Within the memory of man the St. Louis Court of Appeals made a spectacle of itself because the Supreme Court reversed its judgment on a constitutional question. If promoted, as proposed, how kindly will it take to having a chief justice say it is the author of bad law, and require it to go to Jefferson City or elsewhere to defend its actions before his majesty, and, possibly, the criminal judges of the body, considering, among other things, that each of the judges of the St. Louis Court of Appeals holds office two years longer and draws annually $1,000 more salary than his brother who sits on the Supreme Bench, and may, during the last two years of his term be, by virtue of age rather than merit, chief justice.

4. The docket is dictatorially divided between the two divisions of the Supreme Court, and the work of the St. Louis Court of Appeals so limited that it seems more than probable that the bulk of all the work is left to the civil division of the Supreme Court. As there is no provision made for equally dividing the docket, any of the three tribunals is likely to have more than its share by a fluctuation in the different classes of subjects litigated.

At the beginning of the October term, 1880, of the Supreme Court, there were thirty-three felony, and forty-nine misdemeanor causes on the docket, and twelve hundred and fifty-six other causes. The St. Louis Court of Appeals is keeping up with its present docket. Relieve it of all of its criminal causes and the civil causes from the Counties of St. Louis, St. Charles, Lincoln and Warren, and it looks as though, in an attempt to increase the adequacy of the State judicial department, the law-makers have arranged that most of the labor shall be done by the civil division of the Supreme Court, and have not guaranteed them in doing it as their judgment dictates, but by providing for a meeting in banc have made

it possible that the judges to whom most of the work is assigned, may be controlled by the other six judges or a majority of them, and become in effect the amanuensis of their associates.

5. The resolution consolidates into one court, the Supreme Court and the St. Louis Court of Ap peals for certain purposes, but does not provide where it shall meet, nor make any of the other provisions necessary.

6. Will it be possible to have a consistent and uniform line of decisions on any subject, if we undertake to enforce the opinion of a majority of three judges for the opinion of nine judges? Is it probable or possible for three courts of three judges each to agree or even to approximately arrive at the same results, considering the differences of the human mind, and the fact that the ablest judges and the most learned tribunals the world over disagree? A decision of a court of last resort is not only the final determination of the matter in controversy between the parties thereto, but is, so long as it is not overruled, the law of adjustment between all other parties similarly situated. Just in proportion as you diminish the probability that it will be adhered to, you weaken its binding force on such parties. Is it Democratic? Is it the best thing we can do to burden the State with all the probabilities that the proposed amendment justifies?

7. The plan will substitute for one trial, two. and possibly four. In the ordinary course at present, there is an appeal from the trial court to the court of last resort; under the proposed plan it will be (1) from the trial court to the segment of three; (2) to the chief justice; (3), if he grants it, or if the rehearing or certiorari become to be granted, of course to the court in banc; and (4), if the judges be equally divided, before the court and an extra judge.

8. The proposed plan is an experiment, and is not justified by the precedents. The various judicial systems in force in England and America to-day are all different. The Sand-Lot Hoodlum Constitution, adopted by California in 1879, provides for a Supreme Court of seven judges, and for the division of the associate justices into two divisions for the consideration of such causes as may be assigned to the respective sections by the Chief Justice. It is as yet an experiment. The division plan has been tried by other States, but has always been abandoned. Thirty-seven out of thirty-eight States prefer that the court should sit as a whole. The Federal government prefers that its court of last resort should sit as a whole. The English government prefers that "Her Majesty's Court of Appeal" should sit as one body. Constitutional Amendment-Judicial DepartmentJAY L. TORREY.

No.

St. Louis, March 26, 1881.

The Central Law Journal,

ST. LOUIS, APRIL 8, 1881.

CURRENT TOPICS.

The decision recently rendered by Judge Drummond, in the Circuit Court of the United States for the Northern District of Illinois, in the case of Myers v. Callaghan, is of interest to the profession from several aspects. In the first place, this adjudication is an authority upon the unsettled question as to the literary property in law reports, though, of course, as it was not rendered by a court of ultimate resort, it can not be considered as final on that subject. The proceeding was for an alleged infringement of the copyright of certain of the Illinois reports. The plaintiffs claimed all proprietary rights therein, under an assignment from Norman L. Freeman, the official reporter, and alleging a violation of their rights in the premises by the defendants, in reprinting the reports in question, not confining themselves to the opinion of the court in their reproduction, but using Mr. Freeman's head-notes and statement of facts, making colorable changes therein, and trying by that means to avoid the plaintiff's rights under the law. In defense it was urged inter alia, (and upon this point the case seems to have turned), that Mr. Freeman, in performing his duties as reporter, was a public officer acting under the authority of the law, and that, in consequence, the product of his labors, as such, could not under the act of Congress be the subject of copyright. The court held, however, that while such might properly be the view to be taken, where the reporter received a salary or other adequate compensation for his services, in this case the theory was untenable, because it appeared that, at the time the reports in question were prepared, there was no salary attached to the office of reporter, and that, from that circumstance and others attending his appointment, it seemed to have been contemplated that he was to receive compensation for his labors from the proceeds of the sale of the volumes, resting its decision upon the authority of Wheaton v. Peters, 8 Pet. 591. Vol 12-No. 14

This view may be considered as in consonance with the general result of both the English and American cases on the subject: "It is settled that a valid copyright may be acquired by a reporter for those parts of a report of which he is the author or compiler. The head-notes, additional citations in the form of foot-notes, the statement of facts and the abstract of arguments of counsel, represent the result of the labor and authorship of the reporter; but in reporting the opinion delivered by the court he gives a mere copy of what he is not the author." Drone on Copyright, pp. 159, 160, citing Butterworth v. Robinson, 5 Ves. 709; Saunders v. Smith, 3 My. & C. 711; Sweet v. Shaw, 3 Jur. 217; Sweet v. Maugham, 11 Sim. 51; Hodges v. Welsh, 2 Ir. Eq. 266; Sweet v. Benning, 16 C. B. 459; Backus v. Gould, 7 How. 798; Little v. Gould, 2 Blatch. 165, 362; Little v. Hall, 18 How. 165; Cowen v. Banks, 7 Blatchf. 152; s. c., 13 Wal. 608; Chase v. Sanborn, 6 U. S. Pat. Off. Gaz. 932; Banks v. McDivitt, 13 Blatchf. 163.

Aside from the legal principles involved, this decision is of further interest to the lawyer, as bearing directly upon the cost and excellence of the tools of his trade. The New York Tribune, in a recent issue, in commenting upon the views expressed in Judge Drummond's opinion, seemed to regard it as a misfortune to the profession that the law should protect the results of the labor of "some person who had the good fortune to enjoy officially the first range through a court's papers." So far are we from agreeing with this view of the matter, that we think it a subject for congratulation to the prosession, that an additional safe-guard has been thrown around the fruits of the

labors of the official reporters to protect them from the competition of pirated editions. Such editions are almost certain to be inferior in every respect to those prepared and issued by the duly authorized parties. While if the practice of piracy is countenanced in this matter, it will inevitably and naturally be followed by a depreciation in the quality of the official work. We believe that we voice the

feeling of the great body of the profession, when we say that the great desideratum is not cheap law books, but, rather, good ones.

We

have rarely heard any complaints as to the price of law-books, though we have heard many of the results of the pernicious practices of "book-making" and "padding," which have grown so unprecedently within the last decade. Let us hope, rather, that the result of any farther adjudications upon this subject, either in this case or in any other, will be to give all practicable protection to those who assume the task of preparing and publishing the authorized reports of any and all of our Supreme Courts.

LOCAL OPTION IN OHIO-A REPLY TO HENRY WADE ROGERS.

In the issue of this journal of March 12, 1880,1 an article appeared wherein the writer of this challenged the validity-if the same should be enacted into the form of a law-of the Local Option bill then pending in the legislature of Ohio, as being obnoxious to certain specified inhibitions of the Constitution of that State. A considerable number of decisions of respectable courts of last resort of States other than Ohio was also cited, to support, by way of analogy, the primary argument of the constitutional unsoundness of the proposed enactment. Of course the analogy was, in any given case, more or less complete, and the authority of such case, or the inference to be deduced from it, more or less conclusive, according as the organic law of the State in which such case was decided agreed with, or departed from that of Ohio. A few cases, too, which were in apparent conflict with the position of the writer, were noticed, and an attempt was made to distinguish them from the matter under discussion. The writer summed up his investigations thus; "Whether we look at this question in the light of the decided weight of judicial authority in this and other States, or whether we confine it to the plain text of the Constitution of Ohio, it seems difficult to reach any conclusion other than that the scheme of local option, as it is now urged upon the legislature and the public of the State, will be found radically and fundamentally defective when brought to the decisive test of judicial scrutiny."

1 10 Cent. L. J. 203

In a recent number of this journal, Mr. Henry Wade Rogers disputes this conclusion, and charges the writer with having "overestimated his difficulties, and mistaken the weight of authority." After citing and discussing nine adjudicated cases in support of his position, Mr. Rogers says: "The conclusion is irresistible, that a local option law is by no means an unconstitutional measure; that the late decisions must be regarded as having definitely decided the question, that such laws are to be upheld by the courts."

Although the conclusion reached by the writer in the former article was not announced as "irresistible," I see no reason to change it or to think otherwise than that the "local option" bill defeated in the Ohio legislature last year would, if it had become a law, have been unconstitutional in that State. Let us see, then, how far the authorities cited by Mr. Rogers tend to shake this proposition. He says: "It must be conceded that the early decisions upon this subject were decidedly opposed to the validity of these enactments. But the recent decisions, with the exception of ex parte Wall,3 decided in 1874, are as decidedly in favor of their validity, and leave no room for doubt, but that such laws may be constitutional.” Now, premising this foundation of his argument, together with his concession that the earlier cases were decidedly against his position, and also that the measure, the constitutionality of which I questioned, was the local option bill pending in the legislature of Ohio in the winter of 1880, and not the "local option" law of any other time or State; and that the organic objections to its validity exist in the Constitution of Ohio, by which standard alone it must be measured, and not necessarily in that of any other State, and I proceed to examine Mr. Rogers' "recent decisions,” seriatim.

The first case cited by him was decided by the Supreme Court of Indiana in 1873.4 In that case, the statute under consideration declared it to be unlawful for any person to sell any intoxicating liquors; a subsequent section authorized county commissioners to issue a license, or permit, to sell, upon certain conditions, one of which was that the applicant for the permit should file a petition signed by

2 12 Cent. L. J. 123.

3 48 Cal. 279.

4 Groesch v. State, 43 Ind. 557.

a majority of the legal voters of his own ward or township. The fundamental difference between that law and the one proposed for Ohio is, that the former was a positive law when it left the State-House; it prohibited the sale of certain things, and declared such sale unlawful; it affixed the penalty for its violation; it was general in its terms, and it went into effect at the time of its passage. Nothing outside of the enactment itself was necessary to put it into active and uniform operation all over the State. True, the law authorized a license to suspend its operation under certain restrictions, and in certain localities; but the permit-the license, was the exception dependent on the will of the people, and not the law itself. But the enactment attempted in Ohio proposed to submit to the voters of a township the very question of its being law or no law for that township. It would have left the Capitol with no ingredient of a law in it; it was to be positive and prohibitory, provided the electors of a certain locality said so by their votes; otherwise it was to be, and could be nothing. It did not fulfill the most elementary definition of a law; it was not of itself "a rule of action;" it prescribed nothing; it neither commanded the right nor forbade the wrong. All these essentials were made to depend on the will of the people. So far as the work of the legislature was concerned, the bill was at most a bare suggestion, to be submitted to the people for them to say whether it should be a law or not. Now, I submit that it is no function of legislation, for the legislature to ask the counsel or advice of the electors, and to make the vitality of a law dependent upon that advice; the law-making power degrades itself when it asks the consent of the people

to an enactment before it can become an operative law. Legislative authority does not seek the approval of those who are to be amenable to the law, and who are to be visited with its penalties if they disobey it, as a condition precedent to its being a law at all. Law does not invite approbation; it commands obedience. The Ohio legislature was asked to pass an enactment, which was a selfconfession that the enactors had no opinion upon the subject-matter of the law; that they therefore asked the opinion of the electors upon the question, and enacted whatever tha

opinion might prove to be,-in one locality a mandatory law; in anothor, nothing. The vote was to be decisive of the very existence of the proposed law,-to breathe the breath of life into that which was to leave the halls of legislation a nonentity. It was not only not to be uniform in its operation, but it was not to be operative at all, except on the contingency of local popular majorities. If not such majority voted for it in any locality, it would have filled a page or two of the statute book, but it could have performed no other office. But the Indiana law, if no man applied for a license under it, if no popular sentiment was ascertained or voiced in regard to it, would still be in full force and effect in every part of the State. This vital difference seems to me to be the infirmity which runs through nearly all the cases discussed by Mr. Rogers. And the Indiana court plainly had this distinction in mind in announcing their opinion; for they distinguish the case at bar from that of Maize v. State,5 which Mr. Rogers concedes had previously held a local option law unconstitutional; and they say of the latter case, that "it is not necessary that we should overrule it in deciding this case.” The court also say: "Had the question been submitted to the people to determine by vote, or by petition, whether the law should take effect or not, or the time when it should. take effect, as in some of the cases to which we have been referred, there would have been some ground for the objection."

Attention is called here to the fact that the statute, passed upon by the Indiana court in the latest case, was, so far as any "option" of the electors is concerned, a license law-pure and simple; the only alternative to be exercised by the people was that of license, or no license.

Very similar in its scope and its facts, is the next case discussed by Mr. Rogers,-that of Locke's Appeal,6 decided by the Supreme Court of Pennsylvania in 1873. In parity of principle the two eases are almost identical. The enactment was moulded into a complete rule of conduct by the law-making power of the State. It positively denounced as unlawful all liquor traffic without license, and then provided the conditions precedent to the issue of the license, one of which was a majority vote of the electors of the municipal district.

54 Ind. 342.

6 72 Pa. St. 491.